Federal Judge Questions Validity of ‘Server Test’ in Copyright Infringement Case

The creator of a work, whether it is a painting, a manuscript or a photograph, is protected against unauthorized use of the work by others. A recent ruling in a federal lawsuit by a photographer seeking damages for copyright infringement by The Boston Globe, Breitbart News and other news organizations is being characterized as a blow to the wide-spread practices of linking and embedding engaged in throughout the internet.

Speculation about a basketball trade leads to a lawsuit

The plaintiff in the lawsuit is a photographer whose picture of team officials from the Boston Celtics together on a street with the quarterback of the New England Patriots sparked rumors of the quarterback’s role in helping the NBA team to sign a top player. The photographer posted the picture on Snapchat where other people saw it and posted it on social media, including Twitter.

Breitbart, Yahoo, Gannett and the Boston Globe were some of the news organizations that published stories the quarterback and his role in bringing a star NBA player to Boston. The news outlets named as defendants in the photographer’s lawsuit embedded the tweets containing the image into stories the stories they published. This, according to the plaintiff’s claims in the lawsuit, was copyright infringement entitling the photographer to collect damages.

New technology and content does not alter the foundations of the law

The judge hearing a motion for summary judgment seeking dismissal of the case made reference to some of the difficulties courts around the country have faced when applying the federal Copyright Act to technologies that did not exist when the law was written and enacted. While acknowledging that what is created today and the methods used to transmit or disseminate it are vastly different than in the past, the judge concluded the case turned on basic principles forming the foundation of copyright law.

In doing so, the judge ruled against the defendants on their motion to dismiss and allowed the lawsuit to move forward. The judge’s decision rejected the defendants’ reliance on the “server test” widely used by federal judges in California and other states in the Ninth Judicial Circuit.

Development of the server test to address new technologies

Over the years, courts wrestling with issues of display rights of copyright protected material and modern technologies developed what is referred to as the “server test.” The ease and speed with which text and images are distributed over the internet brought into question publication of an image displayed on a website that is not stored on the server of the person or organization publishing it.

For example, if a news organization uses an image and hosts it on its own server, the server test would treat it as a copyright infringement. However, using that same image by linking or embedding it from the server of a third party would not be a violation of the creator’s copyright.

Court rejects server test by using the language of the Copyright Act

The judge denied the defendants’ request for partial summary judgment and granted partial summary judgment to the plaintiff by rejecting the argument that possession of the server on which a digital image is stored should be controlling in deciding if a work has been displayed in violation of the law. The law, according to this decision, does not impose such a restriction.

Facts in this case supported the judge’s conclusion that display of the image in the tweets required an active role by the news organizations to make it happen. The use of code containing instructions from Twitter in a news story published by one of the defendants was cited as an example of the how the defendants worked to link or embed the image.

The decision does not mean the defendants have lost. The court was clear in pointing out that questions remaining to be decided as the case continues include whether posting the photo to Snapchat relinquished the photographer’s copyright protection by placing the image in the public domain.

Experienced copyright attorneys can help

This case illustrates the complex copyright issues that require the advice and guidance of an experienced attorney. The attorneys at the Ahmadshahi Law Offices concentrate their practice on patents, intellectual property, copyright and trade secrets. Contact attorney Michael Ahmadshahi at (800) 747-6081 or (949) 260-4997.

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